Donor conception, legal parents and parental responsibility: what you need to know before starting the process

Posted: 06/10/2020

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There has been a recent spike in interest in the press and on social media around children who have been conceived via sperm donation. It follows the newly released BBC documentary, 25 Siblings and me about 18 year old Oli Benjamin’s search for his American donor father, during the course of which he discovered he had 25 half siblings. There has been further interest generated by the press reporting one unlicensed donor’s claims to have fathered more than 150 children worldwide, with six babies fathered during lockdown.

Figures show that in 2018, approximately 54,000 patients underwent in-vitro fertilisation (IVF) and donor insemination cycles at Human Fertilisation and Embryology Authority (HFEA) licensed fertility clinics in the UK, with the reasons for IVF treatment gradually changing as more same sex couples, single women and surrogates make use of the treatments available to them.

As more and more people turn to IVF and donor insemination procedures, it is imperative that those embarking on the journey to parenthood in this way take specialist legal advice, preferably pre-conception, as to the possible legal implications for them and also for their donor conceived child.

Legal parents

Whilst a child can only have two legal parents, it is important to note that legal parenthood is not synonymous with having parental responsibility for a child. It is possible for more than two people to share parental responsibility.

Establishing the identity of a child's legal parents can be complex. It is necessary to ascertain precisely how a child has been conceived in order to do so.

Unknown donor – artificial insemination at a UK HFEA licensed fertility clinic

If a child is conceived through artificial insemination at a HFEA licensed clinic from an unknown donor, then it is important to note the following:

• the donor will not be the legal parent and will be protected from all legal claims such as child maintenance and Inheritance Act claims
• the woman who gives birth to the donor conceived child will be the child's legal mother
• if the birth mother is married or in a civil partnership, then her spouse or civil partner will be considered the child's second legal parent
• if the birth mother is not married but in a relationship, then it is possible for her to nominate her partner as the child's second legal parent, if certain prescribed forms (which are available from HFEA licensed fertility clinics) are signed prior to conception
• a donor’s sperm can only be used to create up to ten families in order to maintain a relatively small number of children and donor-conceived genetic siblings from one donor

If a child is conceived from a known donor, then it is important to ascertain precisely where the artificial insemination has taken place, and whether this has been at a licensed clinic in the UK, or somewhere else, for example at the home of the donor or recipient.

Known donor at a UK HFEA licensed clinic

If the procedure has taken place at a UK licensed clinic, then the following will apply:

• the birth mother will be the child's legal mother
• if the birth mother is married or in a civil partnership, then the second legal parent will be her spouse or civil partner
• if the birth mother is unmarried, then it will be possible for her to nominate the child's second legal parent by completing the relevant consent forms prior to conception. This could be the birth monther’s partner (if she is in a relationship) or indeed the donor if agreed between the donor and the birth mother

Known donor outside a UK licensed clinic – for example at home

If the procedure has not taken place at a UK licensed clinic, but instead has taken place in an informal setting such as at a parties’ home then the following will apply:

• the birth mother will be the child's legal mother
• if the birth mother is married/in a civil partnership, then her spouse or civil partner will be the child's second legal parent, and they will be eligible to be named on the birth certificate. The donor will not be the child's legal father, although technically they will be the child's biological father
• if the birth mother is not married/in a civil partnership, but is in a relationship, then their partner cannot be the child’s legal parent and cannot be named on the birth certificate. In these circumstances, the only way for the birth mother’s partner to become a legal parent will be to adopt the child. They could acquire parental responsibility for the child (as set below)
• If the birth mother is not married/in a civil partnership, then the donor will be considered the child's second legal parent. The donor can also acquire parental responsibility if they are registered on the child’s birth certificate. The donor, as a legal parent, may be liable for financial claims to include child maintenance and future Inheritance Act claims

Parental responsibility

It is important to note that there is a significant difference between being a child's legal parent, and a person who has parental responsibility for a child. Parental responsibility provides someone with the authority to make decisions about a child’s care and upbringing, and includes, but isn’t limited to, choosing and providing for the child’s education, agreeing to medical treatment, providing a home for the child and protecting and maintaining the child.  A donor who is not a child's legal parent, has no rights or responsibilities towards that child. However, a known donor can apply to the court for parental responsibility for a child and can also apply for a Child Arrangements Order to establish a relationship with the child if it can be shown to be in the child’s best interests.

For clarity, a child's legal parent, who acquires the legal parent status by signing the necessary consent forms at a UK licensed clinic prior to conception, may not have parental responsibility for a child if they are not married to or in a civil partnership with the child's mother, and have not been named on the child's birth certificate.

Acquiring Parental Responsibility

There are a number of ways in which an unmarried parent can acquire parental responsibility for a child. The unmarried parent can:

• marry or enter into a civil partnership with the child’s mother
• have their name registered on the children’s birth certificate
• enter into a Parental Responsibility Agreement with the mother
• obtain a Parental Responsibility Order from the court

Donor Agreements/Pre-Conception Agreements

When conceiving with a known donor, it is extremely important that all parties know what to expect from the arrangement, and what their respective roles and responsibilities will be when a donor conceived child is born. It is imperative that thought is given to all issues pre-conception and that any agreement is recorded in writing if possible.

Although donor agreements/pre-conception agreements are not legally binding, they are extremely helpful in setting out a framework in relation to each of the parties' roles. Recent case law has confirmed that judges will give proper weight to these agreements if the court is asked to make a decision regarding the arrangements for a child.

It is extremely important therefore that specialist legal advice is obtained by each party before taking steps to conceive a child with the assistance of either a donor egg or a sperm donor.

Rights of a donor conceived child

Any child who has been donor conceived at a licensed clinic in the UK after 31 March 2005 is entitled to the following information:

• from the age of 16, they will be entitled to limited information about the donor to include physical description, marital status, the year of birth and medical history
• from the age of 18, any child who has been donor conceived will be entitled to receive identifying information about the donor to include their name, date of birth and last known address

Furthermore, any child conceived after 1 August 1991 will be entitled, via the HFEA's donor sibling link, to make contact with any donor-conceived genetic siblings who have also joined the donor sibling link.

Since 2005, it has no longer been possible to register as an anonymous sperm or egg donor in the UK. Donors must therefore agree to be identifiable once a donor conceived child reaches the age of 18 years old. Therefore, it will be interesting to see how many UK donor conceived children, reaching the age of 18 in 2023 and beyond, will take steps to locate and reach out to their biological donor parents and whether, like Oli Benjamin, they will be reunited with many more family members than they anticipated.

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